1.1. In these Terms and Conditions for Climeworks CDR Services, Climeworks AG and/or any of its affiliates will be referred to throughout as "Climeworks", "our", "we", or "us".
1.2. We have developed a technology to capture CO2 from ambient air and build and operate equipment applying this technology. We combine this with permanent storage of CO2 (for example carbon mineralization), performed by third parties contracted by Climeworks, in order to permanently remove CO2 from the atmosphere. We refer to the combined process as Climeworks Carbon Dioxide Removal ("Climeworks CDR").
1.3. This combined process is used to provide Climeworks CDR services ("Climeworks CDR Services").
2.3. In the event of a conflict between these Terms and Conditions and any Order Confirmation, the terms of such (or the most recent) Order Confirmation shall prevail. The application of your general terms and conditions is excluded, unless we expressly consented to them in writing.
3.1. If you are under the age required to order Climeworks CDR Services under the applicable law, you must have your parent or legal guardian's permission to do so. Please have your parent or legal guardian read these Terms and Conditions with you.
3.2. If you are a parent or legal guardian, and you allow your child to purchase the Climeworks CDR Services, then these Terms and Conditions apply to you and you are responsible for your child's order.
4.1. Climeworks will remove the net quantity of CO2 as described in the Order Confirmation ("Service Quantity") from the atmosphere by performing Climeworks CDR. We will capture CO2 from ambient air at one or several units operated by or on behalf of us (each, a "Climeworks Plant"). The captured CO2 is provided by or on behalf of us to one or several third parties that perform subsequent permanent storage of such CO2.
4.2. The Service Quantity is conclusively determined by a mass flow meter in the Climeworks Plant. CO2 emissions caused by the Climeworks CDR process are deducted and only the removal of the net quantity of CO2 is sold to you.
4.3. The Climeworks CDR Services are completed once the Service Quantity has been removed from the atmosphere by means of Climeworks CDR.
5.1. The price of the Climeworks CDR Services for the Service Quantity quoted in the Order Confirmation includes the subsequent permanent storage.
5.2. Depending on your country of residence if you are a consumer, or your country of establishment if you are a company, prices may be quoted as net prices and may not include value added tax. Upon selection of your country of residence or country of establishment, as applicable, in the check-out page, the check-out price is inclusive of value added tax (if applicable) in the amount specified by applicable law. Additional charges or taxes are to be borne by you.
6.1. Climeworks will complete the Climeworks CDR Services for the Service Quantity as described in any Order Confirmation within 6 (six) years following the invoice date.
6.2. If you have purchased a subscription for Climeworks CDR Services, a confirmation stating the Service Quantity attributable to you will be made available to you at the end of each year until the Service Quantity purchased has been fully delivered.
7.1. When ordering through our website, the payment of the amount charged for the provision of the Climeworks CDR Services ("Climeworks CDR Service Fee") is typically made by credit card according to the billing cycle chosen by you, unless stated otherwise in the Order Confirmation.
7.2. In case we issue an invoice for the Climeworks CDR Service Fee, payment is due within 30 (thirty) days to an account indicated by us. Any fees or charges related to such payments will be borne by you.
7.3. We are entitled to assign this Agreement, in whole or in part, in particular to affiliates of Climeworks. You can assign this Agreement and/or any of its rights or obligations only with our prior written consent.
8.1. Except as expressly described in this agreement, neither party makes, and each party expressly disclaims, any and all representations or warranties whatsoever, whether express, implied or statutory, with respect to the services to be provided under this agreement, including warranties with respect to merchantability, or suitability or fitness for a particular purpose, non-infringement, and any warranties arising from course of dealing, course of performance or trade usage.
8.2. To the maximum extent permitted by applicable law, neither party shall be liable to the other, regardless of the legal theory used to make a claim, and whether or not based upon negligence, breach of warranty, strict liability, in tort or any other cause of action, for any: (a) cost of procurement of any substitute services; (b) delays or unavailability of the Climeworks CDR Services in connection with section 11.6, reasonable delays, economic losses, expected or lost profits, revenue, or anticipated savings, loss of business, loss of contracts, loss of or damage to goodwill or reputation or third party claims; and/or, (c) indirect, special, incidental, punitive, or consequential loss or damage, whether arising out of performance or breach of this agreement, or for any matter beyond the party's reasonable control, even if the party has been advised as to the possibility of such loss or damages.
8.3. To the maximum extent permitted by applicable law, each party agrees that the maximum aggregate liability of either party for all claims of any kind under this agreement, whether based on contract, tort, or any other legal or equitable theory or resulting from this agreement or the Climeworks CDR Services, shall not exceed the Climeworks CDR Services Fee applicable to the portion of the Service Quantity giving rise to liability, and that such remedy is fair and adequate.
9.1. You are entitled to use any documentation provided as part of the Climeworks CDR Services solely to have proof of the Service Quantity attributable to you.
9.2. No further rights are granted under this Agreement, unless they are explicitly granted in any other Climeworks documentation applicable to this Agreement. In particular, no other license, rights of use and/or ownership of any kind of Climeworks' intellectual property are granted and all know-how, patents, trademarks, tradenames, designs, logos, copyrights, manufacturing or business secrets and all other intellectual property owned by Climeworks shall remain the exclusive and unrestricted property of Climeworks.
10.1. The provision of Climeworks CDR Services and this Agreement shall terminate once the parties have complied with their obligations under this Agreement.
10.2. In case the Climeworks CDR Service Fee or any other agreed payment is not received by Climeworks within the payment period set by us, we shall be entitled to terminate this Agreement without notice.
10.3. We are entitled to terminate this Agreement without cause and at our sole discretion with 3 (three) months end of the month prior written notice to you.
10.4. Notwithstanding any other provisions in this Agreement, we are entitled to suspend performance of Climeworks CDR Services effective immediately in case you are in default or otherwise fail to comply with your obligations under this Agreement.
10.5. If you have purchased a subscription for Climeworks CDR Services, you may manage your subscription at any time with effect for the following period (for example month). To terminate or modify your subscription under this Agreement, you can simply click on the corresponding link in our reminder e-mail, manage your settings accordingly or send us an e-mail (no signature required) to [email protected]. We will send you a confirmation e-mail.
10.6. If you change your mind, let us know by e-mail to [email protected] within 14 (fourteen) days from the date you order Climeworks CDR Services. If you decide to change your mind, you will be entitled to a full refund, save for any costs we have incurred in delivering you the Climeworks CDR Services during this period.
10.7. Any Climeworks CDR Services ordered before the effective termination of this Agreement shall be delivered in accordance with the terms of this Agreement.
10.8. Provisions that, by their explicit or implied terms, are meant to survive termination or expiration shall continue irrespective of such termination or expiration. This applies in particular to sections 2.1. 6, 8, 9, 10, 11.2, 11.7, 11.8, 11.9, 11.10.
10.9. Termination of this Agreement is not an exclusive remedy and all other remedies will remain available.
11.1. Any notice required or permitted hereunder shall be sent at [email protected] (if addressed to Climeworks) or at your e-mail address, as specified in the Order Confirmation (if addressed to you).
11.2. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be replaced by a valid and enforceable provision reflecting the economic intent of the parties or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and be enforceable.
11.3. We may change these Terms and Conditions and other documents forming part of the Agreement from time to time. We will notify you by email at least 30 (thirty) days before the date they become effective. Once such changes are in effect, you will be bound by them, unless you have terminated your order. Any and all modifications, waivers or amendments requested by you shall be subject to our written approval.
11.4. Climeworks CDR Services may be subject to U.S. trade controls and sanctions laws and regulations, including but not limited to the U.S. Export Administration Regulations and the sanctions laws and regulations administered by the U.S. Office of Foreign Assets Control ("OFAC"), as well as the trade controls and sanctions of any other jurisdictions in which customer operates (collectively, "Trade Controls"), and, in such case, may only be exported, reexported, or transferred in accordance with applicable requirements. If applicable, it is your responsibility to: (a) provide us with the necessary information for us to comply with Trade Controls; (b) ensure all end-uses and end-users relating to Customer's reexports and retransfers of the Climeworks CDR Services comply with Trade Controls; and, (c) refrain from taking any action that causes us to violate Trade Controls.
11.5. You represent that you are not subject to restrictions under any U.S. government restricted end user list, including but not limited to the U.S. BIS Entity List, U.S. BIS Denied Persons List, or the OFAC List of Specially Designated Nationals, and are not 50% or more, directly or indirectly, owned or controlled by any individuals or entities identified on such lists, and that you shall not engage any person subject to the foregoing restrictions to provide any goods or services for you in connection with your obligations under this Agreement. You will immediately notify us if you become subject to any such restrictions.
11.6. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control. The party subject to such event shall: (a) give the other party notice of such event within 30 (thirty) days; and, (b) use appropriate and commercially reasonable efforts to minimize or remove the effects of the event and to resume the performance affected by such event.
11.7. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
11.8. This Agreement and each Order Confirmation shall be governed by the laws of Switzerland without reference to its choice of law principles. The United Nations Convention on the International Sale of Goods (CISG) shall not apply. The parties to this Agreement consent to the exclusive jurisdiction of the appropriate courts Zurich, Canton of Zurich, Switzerland, for any legal or equitable action or proceeding arising out of, or in connection with, this Agreement or an Order Confirmation. You specifically wave any and all objections to venue in such courts. Nothing herein shall preclude us from seeking equitable injunctive relief in any jurisdiction or court, in the event that we perceive that without such relief, serious harm may be done to our interests.
11.9. Each party to this Agreement hereby irrevocably waives its rights to trial by jury in any action or proceedings arising out of this Agreement or an Order Confirmation.
11.10. You shall defend us against any third-party claim asserted against us arising from or relating to your violation of applicable law and indemnify and hold us harmless from and against related costs, attorneys' fees, and damages, if any, finally awarded pursuant to a non-appealable order.